DRAFT

July 3, 2018

THE PUBLIC PROCUREMENT ACT

_________

The Public Procurement Regulations, 2018

__________

In exercise of the powers conferred on the Minister by section 60(1) (a), (c),

(d), (e) and (j) of the Public Procurement Act, and every other power hereunto enabling, the

following Regulations are hereby made:–

PART I. Preliminary

Citation. 1. These Regulations may be cited as the Public Procurement

Regulations, 2018.

Time and 2. For the purposes of these Regulations, time and cost disproportionality is
cost
dispropor- deemed to exist in the following circumstances –
tionality.
(a) the goods, works or services are –

(i) readily available; and

(ii) not produced or supplied in accordance with the particular

description or specification of the procuring entity;

(b) the market for the goods, works or services is established; and

(c) the estimated value of the procurement does not exceed the procure-

ment method threshold.

PART II. Administration

Functions 3. The specialist procurement unit established by the head of the procuring
of the
specialist entity under section 20(b) of the Act shall be responsible for managing and
procure-
ment unit. executing procurement proceedings on behalf of a procuring entity and,

without prejudice to the generality of the foregoing, shall –

(a) plan the public procurement activities of the procuring entity, taking

into account the procurement needs and the budget of the entity in

respect of each financial year;

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(b) submit the annual procurement plan developed in accordance with

regulation 36 to the Financial Secretary;

(c) make recommendations to the head of the procuring entity for the

applicable procurement method to be utilized in respect of a

particular public procurement;

(d) prepare pre-qualification documents, bidding documents, standard

forms of contracts and any other public procurement documents in

accordance with the standard forms developed by the Office under

section 7 of the Act;

(e) be responsible for the preparation and giving of notices, the conduct

of bidding and the preparation of submissions in accordance with the

approval process for the award of a procurement contract;

(f) as appropriate, monitor the implementation of the procurement

contract;

(g) prepare procurement reports or any other report required relating to a

public procurement managed and conducted by the procuring entity.

Establish- 4. – (1) The head of the procuring entity may establish a specialist
ment of
specialist procurement unit in the following manner –
procure-
ment unit. (a) within the organization of the procuring entity;

(b) by obtaining the services of the specialist procurement unit of

another procuring entity to manage or conduct public procurement

on behalf of the procuring entity; or

(c) by procuring the services of an appropriate procurement specialist

with the requisite technical competency, expertise, resources or

capacity to manage or conduct public procurement on behalf of the

procuring entity.

(2) Where the head of a procuring entity establishes a specialist

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procurement unit, the head of the procuring entity shall cause a report to be

made to the Financial Secretary advising of the manner in which the unit has

been established and in the case of paragraph (1)(b) or (c), identifying the

specialist procurement unit or procurement specialist managing or

conducting public procurement on behalf of the entity, and any subsequent

change in relation to the establishment of the specialist procurement unit.

(3) The report referred to in paragraph (2) shall be made within such

time-frame, in such form and contain such information as the Office may

specify.

Determining 5. In determining the manner of establishment of the specialist procure-

manner of
establish- ment unit, the head of the procuring entity shall take into account –
ment of
specialist (a) the size, location, organizational structure, financial resources and
procure-
ment unit. the procurement needs of the entity; and

(b) any administrative guidance issued or the code of conduct developed

by the Office.

PART III. Public Procurement Procedures

Application 6. A procuring entity shall not engage in single-source procurement and

of time and
cost dis- restricted bidding in the circumstances specified in sections 24(1)(b) and
propor-
tionality. 25(1)(d) of the Act, respectively, unless it is satisfied that, in relation to the

estimated value of the public procurement, time and cost disproportionality

exists.

Matters 7. – (1) For the purposes of section 25(1)(e) of the Act situations of
relating
to single- emergency or extreme urgency are those that –
source
procure- (a) arise as a result of events not attributable to or foreseeable by the
ment.
procuring entity; and

(b) necessitate the award of a procurement contract to effect repairs or

remedial action to safeguard the public interest or, to protect

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infrastructure, property or public monies.

(2) A procuring entity shall –

(a) engage in negotiations with the supplier from which a bid is

requested, unless such negotiations are not feasible in the circum-

stances of the procurement concerned; and

(b) ensure that the objective of value for money is met before awarding a

procurement contract by single-source procurement.

Procure- 8. – (1) A procuring entity may employ a procurement method in

ment
method accordance with the First Schedule.
threshold.
(2) Subject to paragraph (3), the procurement methods specified in the

First third column of the First Schedule shall apply to the procurement of goods,
Schedule.
works and services falling within the value limit thresholds specified in

relation thereto in the second column of that Schedule.

(3) The application of a procurement method in respect of a value limit

threshold as specified in the First Schedule shall not apply in relation to the

application of –

(a) restricted bidding in the circumstances specified under section 24(1)

(a),(c) or (d) of the Act; or

(b) single-source procurement in the circumstances specified in section

25(1)(a), (b), (c) or (e) and section 25(2) of the Act.

Open 9. – (1) A procuring entity may conduct a procurement by means of open

bidding.
bidding –

(a) utilizing pre-qualification proceedings for a complex procurement of

high value goods, works or services;

(b) in a single stage, in accordance with the administrative guidance, if

any, issued by the Office; or

(c) in two-stages, in accordance with paragraph (2).

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(2) Where a procuring entity engages in procurement by means of open

bidding the procurement may be conducted in two stages –

(a) if the circumstances referred to in paragraph (3) exist; and

(b) in accordance with the administrative guidance, if any, issued by the

Office.

(3) The circumstances referred to in paragraph (2) for the conduct of

two-stage bidding are that –

(a) it is not feasible to describe or identify in detail the technical specifi-

cations or contractual terms of the goods, works or services to be

procured; or

(b) the goods, works or services are of such a complex nature that the

procuring entity is desirous of discussing with bidders the relative

merits or applicable considerations of various technical specifica-

tions or contractual terms before finalizing the technical specifica-

tions or contractual terms for the goods, works or services to be

procured.

Request for 10. A procuring entity may conduct procurement by means of a request for
proposal
without proposal without negotiation by ranking the bids in accordance with the
negotiation.
technical, financial and other criteria of each bid and awarding the highest-

ranked bidder without negotiation.

Request for 11. The procuring entity that engages in procurement by means of a request
proposal
with con- for proposals with consecutive negotiation in order to obtain fair and
secutive
negotiation. reasonable proposals shall –

(a) set a score on the basis of the technical, quality and performance

characteristics of the proposals, and then rank the proposals that meet

or exceed the score, ensuring that the bidders with which it will

negotiate are capable of providing the required goods, works, or

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services, of the procurement; and

(b) thereafter hold negotiations on the commercial or financial aspects of

the proposals –

(i) in the first instance, with the bidder that the procuring

entity, on its evaluation of the proposals, ranked highest

(that is, the bidder appearing to have the most responsive

proposal);

(ii) in the event of the termination of negotiations with that

bidder, the procuring entity shall hold negotiations with the

second highest-ranked bidder; and

(iii) thereafter, in the event of the termination of negotiations

with the second highest-ranked bidder, the procuring entity

shall hold negotiations with the next ranked bidder,

and so on, until it is satisfied with the negotiations and closes the

procurement proceedings.

Framework 12. – (1) A procuring entity may establish a framework agreement if the
agreements.
procuring entity determines that –

(a) the need for the goods, works and services, as the case may be, is

expected to arise on a repeated basis during a given period of time; or

(b) by virtue of the nature of the goods, works or services concerned, the

need for the goods, works or services, as the case may be, may arise

on an urgent basis during a given period of time.

(2) A procuring entity may engage in procurement under an open

framework agreement or a closed framework agreement.

(3) A framework agreement shall be conducted in two stages, as

follows –

(a) a first stage, during which a supplier is invited to be a party to a

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framework agreement with a procuring entity; and

(b) a second stage, during which a procurement contract is awarded

under the framework agreement to a bidder that is a party to that

agreement.

(4) A procuring entity shall apply or negotiate a framework agree-

ment in accordance with the administrative guidance of the Office.

Procurement 13. For the purposes of section 43 of the Act, the procurement contract
contract
approval value for the procurement contract approval limit specified in the first column
limit.
Second of the Second Schedule, is the value specified in relation thereto in the second
Schedule.
column of the Second Schedule.

Content of 14. – (1) The invitation to bid shall include the following information –
invitation
to bid. (a) the name and address of the procuring entity;

(b) a summary of the principal terms and conditions of the procurement

contract to be entered into as a result of the procurement proceedings,

including, as applicable –

(i) the nature, quantity and place of delivery of the goods to be

supplied;

(ii) the nature and location of the works to be effected;

(iii) the nature of the services and the location where they are to

be provided;

(iv) the desired or required time for the supply of the goods, the

completion of the works or the provision of the services;

(c) a summary of the criteria and procedures to be used for ascertaining

the qualifications of suppliers, and of any documentary evidence or

other information that must be submitted by suppliers to demonstrate

their eligibility, in conformity with regulation 18;

(d) if applicable, a declaration –

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(i) as to whether participation in the procurement proceedings is

limited to Jamaicans;

(ii) that the procurement proceedings is subject to a special and

differential treatment measure, and the terms of the special

and differential treatment measure;

(e) the means of obtaining the bidding documents and the place where

they may be obtained;

(f) the non-refundable price, method and currency of payment, if any, to

be charged by the procuring entity for the bidding documents;

(g) a statement that the bidding documents and all other documents

submitted in the procurement are to be made available in the English

language;

(h) a reference to all other documents required pursuant to administrative

guidance issued by the Office; and

(i) the manner, place and deadline for presenting bids.

(2) The declaration of special and differential treatment measure

referred to in paragraph (1)(d )(ii) shall state –

(a) the criteria, terms or procedures, if any, relating thereto;

(b) the effect of the application on participation in the procurement

opportunity;

(c) the objective of the special and differential treatment measure;

(d) in the case of a domestic margin of preference applied in relation to

the use of domestic content by a Jamaican supplier the eligible bidder

to which it relates by identifying –

(i) the geographic location of the bidder or the bidder’s

business office or the bidder’s facilities for the delivery or

production of the goods, services or works;

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(ii) the Jamaican origin of labour, raw materials, goods,

products or origin of production components;

(iii) the extent of the use of Jamaican sub-contractors or

Jamaican business partners, service providers or labour;

(iv) such other criteria for the domestic content which would

provide for application of the domestic margin of

preference;

(e) state the documentation required in support of the application of a

special and differential treatment measure; and

(f) any other matter in relation to the special and differential treatment

measure that the procuring entity deems necessary in the

circumstances.

Fee for 15. A procuring entity providing bidding documents in accordance with
bidding
documents. section 34(1) of the Act may charge a non-refundable fee for providing those

documents to participating suppliers, in accordance with administrative

guidance issued by the Office.

Contents 16. – (1) In addition to the matters specified under section 34(3) of the Act,
of bidding
documents. the bidding documents shall include, as appropriate, taking into account the

subject-matter and complexity of the specific public procurement, the

following information –

(a) instructions for preparing bids;

(b) the criteria and procedures that will be applied to determine the eligi-

bility and qualifications of suppliers to participate in the procurement

opportunity;

(c) the requirements as to documentary evidence or other information

that must be presented by suppliers to establish their eligibility and

qualifications;
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(d) in relation to the goods, works or services that are the subject of the

procurement –

(i) a detailed description of the goods, works or services;

(ii) the quantity of the goods or the duration of the services to

be performed;

(iii) the location for delivery of the goods, the works to be

effected or services to be provided;

(iv) dates and time-frames for the delivery of the goods, the

works effected or services provided;

(e) the terms and conditions of the procurement contract, to the extent

that they are already known to the procuring entity, and the form of

the contract, if any, to be signed by the parties;

(f) if alternatives to the characteristics of the goods, works or services to

be procured, or the contractual terms and conditions or other require-

ments set out in the bidding documents are permitted, a statement to

that effect and a description of the manner in which alternative bids

are to be evaluated;

(g) if suppliers are permitted to present bids for only a portion of the

goods, works or services to be procured, a description of the portion

or portions for which bids may be presented;

(h) the manner in which the bid price is to be formulated and expressed,

including a statement as to whether the price is to cover elements

other than the cost of the goods, works or services to be procured,

such as any applicable transportation and insurance charges, customs

duties and taxes;

(i) the currency or currencies in which the bid price is to be formulated

and expressed;
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(j) any terms and conditions with respect to bid security, performance

security or any other security required in connection with the

procurement proceeding or the execution of the procurement

contract;

(k) if a supplier may not modify or withdraw its tender prior to the

deadline for presenting bids without forfeiting its bid security, a

statement to that effect;

(l) the manner, place and deadline for presenting bids, in conformity

with these Regulations;

(m) the means by which suppliers may seek clarification of the bidding

documents and a statement as to whether the procuring entity intends

to convene a meeting of suppliers at this stage;

(n) the manner, place, date and time for the opening of bids;

(o) the criteria and procedure for examining bids against the description

of the goods, works or services to be procured;

(p) the criteria and procedure for evaluating bids including, if applicable,

any declared special and differential treatment measure and the

requirements for the application of the measure;

(q) the currency that will be used for the purpose of evaluating bids and

either the exchange rate that will be used for the conversion of bid

prices into that currency or a statement that the rate published by a

specified financial institution and prevailing on a specified date will

be used;

(r) references to the Act and these Regulations;

(s) the name, functional title and address of one or more officers or

employees of the procuring entity who are authorized to com-

municate directly with and to receive communications directly from

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suppliers, in connection with the procurement proceedings, without

the intervention of an intermediary;

(t) notice of the right to a reconsideration or review of an action or

decision of a procuring entity or to lodge an appeal, together with

information about the duration of the applicable standstill period and,

if none will apply, a statement to that effect and the reasons therefor;

(u) any formalities required, once a successful bid has been accepted, for

formation or entry into force of a procurement contract including,

where applicable, the execution of a written procurement contract;

(v) following the dispatch of the notice of acceptance, the estimated

period of time that will be required to complete formalities; and

(w) any other information required by the procuring entity relating to the

preparation and presentation of bids or other aspects of the

procurement proceedings.

(2) Where a procuring entity engages in pre-qualification under

section 33 of the Act, the bidding documents shall include the matters

specified in paragraph (1) with necessary modification for the purposes of the

pre-qualification proceedings.

PART IV. The Procurement Process

Eligibility 17. – (1) Subject to paragraph (3), a supplier shall not be eligible to
of suppliers.
participate in procurement proceedings unless the supplier satisfies the

procuring entity that the supplier is in compliance with –

(a) all of the supplier’s statutory obligations in respect of the payment of

taxes; and

(b) section 15 of the Act.

(2) Subject to paragraph (4), a procuring entity may ascertain whether

a supplier is eligible, as provided in paragraph (1), at the time of the

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submission of bids.

(3) Where the performance of a procurement contract does not require

the contractor to be physically located in Jamaica, the eligibility requirements

specified in paragraph (1) shall not be a condition precedent for the award of a

procurement contract through procurement proceedings by means of –

(a) international competitive bidding;

(b) restricted bidding in the circumstances specified under section

24(1)(a), (c) or (d) of the Act; or

(c) single-source procurement in the circumstances specified in

section 25(1)(a),(b),(c) or (e), and (2) of the Act.

(4) In the case of procurement by way of international competitive

bidding, a procuring entity may ascertain whether a supplier is eligible, as

provided in paragraph (1), at the time of award of the procurement contract.

(5) All information required under paragraph (1) shall be set out in

the pre-qualification documents, if any, and in the bidding documents and

shall apply equally to all suppliers.

Qualifica- 18. – (1) Subject to the right of bidders to protect their intellectual property
tion of
bidders. or trade secrets, the procuring entity may require bidders participating in a

procurement proceeding to provide documentary evidence or other informa-

tion to satisfy itself that the bidders are qualified in accordance with the –

(a) qualifications specified in any pre-qualification document or bidding

documents; and

(b) requirements of regulation 19, the provisions of the Act or any

regulations made thereunder.

(2) The procuring entity shall evaluate the qualifications of bidders

in accordance with the qualification criteria set out in the pre-qualification

documents, if any, and in the bidding documents.

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(3) Except as permitted under the Act, a procuring entity shall

establish no qualification criterion, requirement or procedure that discri-

minates against or among bidders or against categories thereof, or that is not

objectively justifiable.

(4) Subject to paragraph (5), a procuring entity shall disqualify a

bidder if it finds at any time during the evaluation proceedings that the

information submitted concerning the qualifications of the bidder was false or

constituted a misrepresentation.

(5) A procuring entity may disqualify a bidder on the ground that the

information it supplied about its qualifications was materially inaccurate or

materially incomplete.

(6) Where information given by a bidder is inaccurate or incomplete

in a non-material respect, the procuring entity may, without prejudice to

paragraph (5), not disqualify the bidder unless the bidder fails to remedy a

deficiency in the information promptly upon request by the procuring entity.

(7) A procuring entity may require a bidder that was pre-qualified in

accordance with section 33 of the Act, to demonstrate its qualifications a

second time in accordance with the same criteria used to pre-qualify that

bidder, and the procuring entity shall disqualify any bidder that fails to

demonstrate its qualifications again if requested to do so.

(8) A procuring entity shall promptly notify a bidder requested to prove

its qualifications a second time, as to whether or not the bidder has done so to

the satisfaction of the procuring entity.

Disqualifi- 19. – (1) A supplier shall not be qualified to bid if –

cation.
(a) the supplier whether in Jamaica or elsewhere –

(i) has been convicted of an offence involving dishonesty,

within the five years immediately preceding the commence-

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ment of the procurement proceedings;

(ii) is an undischarged bankrupt; or

(iii) is not solvent or is the subject of winding-up proceedings;

(b) in the case of the supplier that is a body corporate, any of its directors

or general managers, or its secretary or any other similar officer has,

whether in Jamaica or elsewhere, been convicted of an offence

involving dishonesty, or have been the subject of legal or disciplinary

proceedings for any breach of duty or professional misconduct,

within five years immediately preceding the commencement of the

procurement proceedings;

(c) the supplier’s record of participation in public procurement or the

supplier’s business practices gives the procuring entity reasonable

cause to believe that the supplier carried out any act involving

impropriety in the handling of moneys;

(d) the supplier’s affairs are being managed or administered by –

(i) a court; or

(ii) a trustee licensed or appointed as such under the Insolvency

Act, 2014, or, where the context otherwise provides, the

Government Trustee appointed under section 227 of that

Act;

(e) in the opinion of the procuring entity the supplier, is not a person –

(i) of sound probity; or

(ii) able to exercise competence, diligence and sound judgment

in fulfilling the supplier’s responsibilities in relation to a

public procurement.

(2) For the purposes of determining if a person satisfies the criteria

under paragraph (1), the procuring entity shall have regard to any evidence
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that the supplier has –

(a) engaged in any public procurement or business practice appearing to

the procuring entity to be deceitful or oppressive or otherwise

improper, which reflects discredit to the supplier’s method of doing

business;

(b) contravened any provision of any enactment designed for the

protection of the public against financial loss due to dishonesty,

incompetence or malpractice by persons concerned in the provision

of financial services or in the management of companies due to

bankruptcy;

(c) failed to meet any other qualification criteria specific to the

requirements of the particular public procurement.

(3) All qualification criteria specific to the requirements of the

particular public procurement shall –

(a) be applied equally to all bidders, subject to the application of any

special and differential treatment measure;

(b) be specified in any pre-qualification and bidding documents;

(c) in relation to the capacity to perform the procurement contract, be

limited to criteria designed to demonstrate that a bidder possesses the

necessary capacity, including professional and technical

qualifications and competence, financial resources, equipment and

other physical facilities, managerial capability and experience;

(d) not be unduly restrictive or designed to reduce competition; and

(e) be determined, taking into account the subject, size, complexity and

technical requirements of the goods, works or services that are the

subject of the procurement contract.

Deadlines. 20. – (1) A procuring entity shall ensure that –

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(a) the manner, place and deadline for presenting applications to pre-

qualify are set out in the invitation to pre-qualify and in the pre-

qualification documents, as applicable;

(b) the manner, place and deadline for presenting bids are set out in the

bidding documents; and

(c) subject to paragraph (2), if bids are not to be opened immediately

after expiry of the deadline, the bidding documents specify the time

or a maximum time period in which the bids are to be opened and

such maximum period within the day the bid is received.

(2) Deadlines for presenting applications to pre-qualify or for

presenting bids shall –

(a) be expressed as a specific date and time; and

(b) allow sufficient time for suppliers to prepare and present their

applications or bids, taking into account the reasonable needs of the

procuring entity.

(3) If the procuring entity issues a clarification or modification of the

pre-qualification or bidding documents, it may, prior to the applicable

deadline for presenting applications to pre-qualify or for presenting bids,

extend the deadline, if necessary under regulation 22(2), in order to afford

suppliers sufficient time to take into account the clarification or modification

in the preparation of their applications or bids.

(4) Prior to a deadline for presenting applications to pre-qualify or for

submitting bids, a procuring entity may extend the applicable deadline.

(5) Notice of any extension of the deadline shall be given promptly to

each supplier to which the procuring entity previously provided the pre-

qualification or bidding documents.

Clarifica- 21. – (1) Subject to paragraph (2), a supplier may request a clarification of
tion of
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pre-quali- the pre-qualification and bidding documents from the procuring entity, and
fication or
bidding the procuring entity shall –
documents.
(a) prior to the deadline for submitting bids and in a reasonable time as

stated in the bidding documents, respond to any request received

from a supplier for clarification of the bidding documents;

(b) without identifying the requesting supplier, communicate the

clarification to all suppliers to which the procuring entity has

provided the pre-qualification and bidding documents; and

(c) respond within a time period that will enable the supplier to take into

account the clarification and to present its bid in a timely fashion.

(2) A request for clarification by a procuring entity, supplier or

bidder shall be made, in writing, and form part of the record of the procure-

ment proceedings in accordance with section 47 of the Act.

(3) If the procuring entity convenes a meeting of suppliers, it shall –

(a) without identifying the supplier who requested the clarification,

prepare minutes of the meeting and the minutes shall include the

requests made for clarification of the bidding documents and the

procuring entity’s clarification in response to those requests; and

(b) promptly provide the minutes to all suppliers to which the procuring

entity provided the bidding documents, so as to enable those

suppliers to take into account the contents of the minutes in preparing

their bids.

(4) If the procuring entity convenes a meeting of suppliers, it shall, if

a clarification –

(a) necessitates modification of the bidding documents, issue an adden-

dum in accordance with regulation 22;

(b) results in the information published at the time of the first invitation
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becoming materially inaccurate, publish the amended information in

accordance with regulation 23.

Modifica- 22. – (1) At any time prior to the deadline for submission of bids, a
tion of pre-
quali- procuring entity may for any reason, whether on its own initiative or as a
fication or
bidding result of a request for clarification by a supplier, modify the pre-qualification
documents.
or bidding documents by issuing an addendum, and the addendum shall be

communicated promptly to all suppliers to which the procuring entity has

provided the pre-qualification or bidding documents and those pre-qualifi-

cation or bidding documents, as modified by the addendum, shall apply to the

procurement.

(2) Where an addendum is issued, the procuring entity may extend

the deadline for submission of bids in accordance with regulation 20(4).

Information 23. Where a clarification under regulation 21 or a modification under

made
materially regulation 22 results in an invitation to pre-qualify or to bid becoming
inaccurate
on clarifi- materially inaccurate the procuring entity shall withdraw and re-issue the pre-
cation.
qualification or bidding documents and permit the suppliers who had

originally obtained these documents under the previous procurement

proceedings to participate without penalty, subject to regulation 19(2)(c).

Submission. 24. – (1) Subject to paragraph (2), an application to pre-qualify or bid shall

be submitted by a supplier or bidder, as the case may be, to the procuring

entity, in writing, duly signed and sealed.

(2) The procuring entity shall permit the submission of a pre-

qualification application or a bid –

(a) by any other manner as may be specified by the procuring entity in

the pre-qualification documents and bidding documents; and

(b) in accordance with any administrative guidance issued by the Office.

Modifica- 25. – (1) Consequent to a clarification or otherwise, a supplier or bidder

tion or
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withdrawal may modify or withdraw a pre-qualification application or bid, respectively,

of pre-
qualifica- by submitting a notice of modification or a notice of withdrawal, as the case
tion appli-
cation or may be, to the procuring entity not later than the deadline for the close of
bid.
submission of pre-qualification applications or bids.

(2) The notice of modification under paragraph (1) shall be submitted

to the procuring entity –

(a) by a supplier, in a sealed envelope labelled –

(i) to bear the words “Modification of Application to Pre-

qualify”, “Withdrawal of Pre-qualification Application” or

“Modification of Proposal”, as applicable; and

(ii) to identify the supplier and the pre-qualification application

to which the notice relates;

(b) by the bidder, in a sealed envelope labelled –

(i) to bear the words “Amendment of Bid”, “Withdrawal of

Bid” or “Withdrawal of Proposal”, as applicable; and

(ii) to identify the bidder and the invitation to bid to which the

notice relates.

Late pre- 26. – (1) Where a pre-qualification application or a bid is received by the
qualifica-
tion appli- procuring entity after the deadline for submission of the pre-qualification
cations
and bids. applications or bids, the procuring entity shall –

(a) not open that application or bid; and

(b) notify the supplier or bidder to collect the pre-qualification

application or bid from the procuring entity within thirty days after

the deadline for submission and that if not collected, the late pre-

qualification application or bid shall be dealt with in accordance with

paragraph (2).

(2) Where a supplier or bidder submits a pre-qualification application

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or bid after the deadline for submission the supplier or bidder, on being

notified of the late submission by the procuring entity, shall collect the late

application or bid from the procuring entity within thirty days after the

deadline for submission and if the supplier or bidder, as the case may be, fails

to collect the pre-qualification application or bid as required the procuring

entity shall destroy the application or bid.

Clarifi- 27. – (1) The procuring entity may ask a supplier or bidder for clarification
cation of
pre-qualifi- of its pre-qualification application or of its bid, in order to assist in the
cation
application ascertainment of qualifications or the examination and evaluation of bids.
or bids.
(2) The procuring entity shall correct any purely arithmetical errors

that are discovered during the examination of pre-qualification application or

bids and shall give prompt notice of any such correction to the supplier or

bidder that presented the application or bid concerned.

(3) No substantive change to a pre-qualification application or bid,

including changes that materially alter the qualification or bid or which

otherwise confers a competitive advantage to a supplier or bidder shall be

permitted.

(4) No negotiations shall take place between the procuring entity and

a supplier or bidder with respect to qualification information or bids, nor shall

any change in price be made pursuant to a clarification that is sought under

this regulation.

Bid validity. 28. – (1) A bid received by a procuring entity remains valid for the duration

of the bid validity period specified in the bidding document.

(2) Where a bid validity period is extended pursuant to a request under

section 44(8) of the Act –

(a) the procuring entity shall forthwith so advise the bidders concerned;

and
 22

(b) each bidder may extend the effectiveness of his bid and bid security,

and a bidder who has not done so shall not be entitled to continue to

participate in the procurement proceeding and shall be entitled to

have his bid security returned.

Securities

Securities. 29. A procuring entity engaged in a public procurement proceeding or the

performance of a procurement contract may require a bidder or a contractor to

provide one or more of the following –

(a) bid security;

(b) performance security;

(c) advance payment security; or

(d) a mobilization payment security.

Bid security. 30. – (1) A procuring entity may, in accordance with any administrative

guidance issued by the Office, require bid security.

(2) The procuring entity shall cause the bidding documents to stipu-

late that the issuer of the bid security, as well as the form and terms of the bid

security, are to be acceptable to the procuring entity.

Forfeiture 31. Bid security may be forfeited by the procuring entity if –

of bid
security. (a) during the bid validity period a bidder –

(i) makes a major alteration to the bid of such an extent that the

bid deviates materially or departs from the substance of the

terms of the bid as it was at the time of its initial submission

to the procuring entity; or

(ii) withdraws from the procurement proceedings;

(b) after the procuring entity has notified a bidder of an arithmetical

error in the bidder’s bid that can be corrected without materially

altering the substance of the bid, the bidder refuses to continue to

 23

participate in the procurement proceedings; or

(c) the successful bidder withdraws, cancels or substantially modifies the

bid during the bid validity period.

Perfor- 32. – (1) Subject to paragraph (2), a procuring entity may require, as a
mance
security. condition of the contract awarded, performance security.

(2) Performance security –

(a) may not be required to secure the performance by a contractor of a

procurement contract of an estimated value of less than thirty million

dollars;

(b) subject to paragraph (3), shall not exceed 10% of the procurement

contract price;

(c) shall be payable, surrendered, discharged or forfeited in accordance

with the terms of the performance bond.

(3) A procuring entity may require performance security in an amount

in excess of the percentage specified in paragraph (2)(b) in accordance with

any administrative guidance issued by the Office.

(4) The procuring entity shall cause the bidding documents to stipu-

late that the issuer of the performance security, as well as the form and terms

of the performance security, are to be acceptable to the procuring entity.

Advance 33. – (1) Subject to paragraph (2), a procuring entity may offer, in respect
payment
and of the award of a procurement contract for goods or services, an advance
security.
payment.

(2) A procuring entity shall –

(a) not require advance payment security, adjust the amount of an

advance payment or make an advance payment in excess of 50% of

the stated procurement contract price without obtaining, in the case

of –
 24

Second (i) the Tier 1 Limit specified in the Second Schedule, the prior
Schedule.
approval of the head of the procuring entity;

(ii) the Tier 2 Limit specified in the Second Schedule, the prior

approval of the head of the procuring entity and the

Commission, respectively;

(iii) the Tier 3 Limit specified in the Second Schedule, the prior

approval of the head of the procuring entity, the

Commission and the Cabinet;

(b) if making an advance payment, require the contractor to provide an

advance payment security of an amount equal to the sum of the

advance payment made by the procuring entity; or

(c) claim forfeiture of the advance payment security in the case of the

default of the contractor in completing the contract in accordance

with the terms of the advance payment security.

Mobiliza- 34. – (1) Subject to paragraph (2), a procuring entity may offer, in respect
tion pay-
ment and of the award of a procurement contract for works, a mobilization payment.
security.
(2) The procuring entity shall –

(a) not make a mobilization payment in excess of 10% of the stated

procurement contract price, unless sub-contractors are engaged in the

completion of the procurement contract, in which case the

mobilization payment shall not exceed 15% of the procurement

contract price;

(b) not adjust the amount of a mobilization payment without obtaining,

in the case of –

(i) the Tier 1 Limit specified in the Second Schedule, the prior

approval of the head of the procuring entity;

(ii) the Tier 2 Limit specified in the Second Schedule, the prior
 25

approval of the head of the procuring entity and the

Commission, respectively;

Second (iii) the Tier 3 Limit specified in the Second Schedule, the prior
Schedule.
approval of the head of the procuring entity, the

Commission and the Cabinet;

(c) require the contractor to provide a mobilization payment security of

an amount equal to the sum of the mobilization payment;

(d) immediately return the mobilization payment security to the con-

tractor on recovery of the mobilization payment from the contractor;

(e) in the case of the default of the contractor in mobilizing in accor-

dance with the terms of the works contract, forfeit the mobilization

payment security.

Procure- 35. – (1) A procuring entity shall plan from the previous year all public
ment
planning. procurement anticipated in respect of any ensuing financial year.

(2) In anticipation of the Budget Call, a procuring entity shall

prepare a procurement plan in accordance with these Regulations.

(3) Where the specialist procurement unit of a Ministry manages and

conducts public procurement on behalf of another procuring entity, that

procuring entity shall submit a copy of its procurement plan to the Ministry

for inclusion in its portfolio procurement needs.

(4) In this regulation “Budget Call” has the meaning assigned to it by

the Financial Management Regulations, 2011.

Procure- 36. The procurement plan referred to in regulation 35(2) shall –

ment plan.
(a) be comprised of an annual procurement plan in respect of all public

procurement anticipated for the ensuing financial year; and

(b) include the details of the anticipated public procurement, including

the application of any domestic margin of preference and set asides.

 26

Informa- 37. – (1) The procuring entity shall provide the Office with the approved
tion and
statistics. annual procurement plan by April 30 of each financial year.

(2) The Office may utilize the information contained in the annual

procurement plan provided by the procuring entity under paragraph (1) to

obtain information and to extract data as necessary to discharge its functions

under section 7 of the Act.

Disclosure 38. Subject to section 46(1) of the Act, the procuring entity shall, in
of record of
proceeding. accordance with section 47(2) of the Act, on a request, in writing, made by a

supplier or bidder, cause portions of the record relevant to the request to be

made available after the successful bid has been accepted or the procurement

has been cancelled by the procuring entity.

Publication. 39. – (1) Where a procuring entity engages in procurement by means of

open bidding or pre-qualification proceedings, the procuring entity shall

invite bids by causing a notification of the public procurement opportunity to

be published –

(a) on at least two occasions locally, in a newspaper circulated

throughout Jamaica;

(b) using the electronic procurement system; or

(c) otherwise in accordance with administrative guidance issued by the

Office.

(2) A procuring entity is not required to publish the invitation to bid

as required under paragraph (1) where the procurement is undertaken

pursuant to sections 24 and 25 of the Act.

(3) The notification inviting bids referred to in paragraph (1) shall be

published prior to the submission of bids, in accordance with the time-frames

Third specified, in relation to the relevant procurement method, in the Third

Schedule.
Schedule.
 27

(4) Where information published at the time of the invitation to pre-

qualify or bid for the participation of suppliers in the procurement proceed-

ings becomes materially inaccurate as a result of a clarification or modifica-

tion issued in accordance with regulations 21 or 22 the procuring entity shall

cause the amended information to be published in the same manner and place

in which the original information was published.

(5) A procuring entity shall cause a notice –

(a) of the establishment of a framework agreement or the award of a

procurement contract under section 45(1) of the Act to be

published –

(i) using the electronic procurement system; or

(ii) otherwise in accordance with the administrative guidance, if

any, of the Office; and

(b) of procurement contract awards made in the preceding financial year

in the Annual Procurement Contract Award Report, published under

section 45(2) of the Act –

(i) using the electronic procurement system; or

(ii) otherwise in accordance with administrative guidance issued

by the Office.

(6) A procuring entity shall submit to the Office an Annual

Procurement Contract Award Report, not later than June 30 of any calendar

year, which shall include a list of all procurement contracts awarded in

respect of the year preceding the date referred to in this paragraph.

Reports. 40. The procuring entity shall provide, in writing, from time to time, such

reports and in such manner, as the Financial Secretary or the Office may

request, on the procuring entity’s public procurement proceedings and any

matter affecting or relating to the conduct of those proceedings.

 28

PART V. Special and Differential Treatment Measures

Objects of 41. With the purpose of improving the distribution of wealth and income
special and
differential within Jamaica, and to reduce costs of public procurement, including the
treatment
measures. national developmental costs, special and differential treatment measures may

be applied to a procurement proceeding to –

(a) encourage the participation of Jamaican suppliers in public procure-

ment opportunities;

(b) increase the capacity of Jamaican suppliers to compete for procure-

ment contracts; and

(c) develop Jamaican industries.

Special 42. – (1) In accordance with these Regulations, a procuring entity may
and
differential utilize a special and differential treatment measure.
treatment
measures. (2) A procuring entity shall not apply a special and differential

treatment measure in a public procurement in a manner inconsistent with any

administrative guidance issued by the Office.

Application 43. A procuring entity shall apply a domestic margin of preference –

of domestic
margin of (a) in open bidding by means of international competitive bidding;
preference.
(b) in preference of or to the advantage of eligible Jamaican bidders in

accordance with an order under regulation 44, these Regulations and

any administrative guidance issued by the Office.

Order 44. – (1) Subject to paragraph (2), to mitigate the competitive dis-
specifying
domestic advantages of the participating Jamaican suppliers, the Minister may by order,
margin of
preference. subject to affirmative resolution prescribe –

(a) the categories of Jamaican bidders eligible to benefit from the

application of a domestic margin of preference; and

(b) the percentage of that margin.

(2) An order made by the Minister under paragraph (1) shall

 29

include –

(a) the categories of suppliers eligible to benefit from the domestic

margin of preference;

(b) the requirements as to use of domestic content by eligible bidders for

the favourable application of the domestic margin of preference;

(c) the percentage of the increase to be applied to the price criteria of the

bidders ineligible to benefit from the application of the domestic

margin of preference; and

(d) any other qualification or requirement the Minister determines

necessary.

Declaration 45. Where a procuring entity applies a domestic margin of preference in a

of domestic
margin of procurement proceeding the procuring entity shall cause a declaration to be
preference.
made in accordance with regulation 14(2)(d) that the procurement proceeding

is subject to a domestic margin of preference.

Order 46. The Minister may, by order, subject to affirmative resolution, specify
specifying
set asides. any set asides to be applied under these Regulations, and the order shall

include –

(a) the description of the categories or types of Jamaican suppliers who

are to benefit from the set aside;

(b) the terms and conditions of the set aside and the manner of its

application to the Jamaican suppliers specified under paragraph (a);

and

(c) the matters that a Jamaican supplier needs to satisfy to demonstrate to

a procuring entity the Jamaican supplier is qualified to benefit from

the set aside.

Application 47. – (1) A procuring entity shall apply any applicable set aside –
and decla-
ration of set (a) ordered by the Minister under regulation 46, in accordance with the
asides.
 30

provisions of the order; and

(b) in accordance with any administrative guidance issued by the Office.

(2) Where a procuring entity applies a set aside under paragraph (1),

the procuring entity shall cause a declaration to be made in accordance with

regulation 14(2).

Inconsis- 48. Notwithstanding any inconsistency or error in the declaration or

tency with
orders. application of special and differential treatment measures in the notification

or the bidding documents, the special and differential treatment measures

shall be applied by the procuring entity in accordance with the relevant order

under regulation 44 or 46.

FIRST SCHEDULE (Regulation 8)

Procurement Method Threshold

For the purposes of regulation 8, the procurement method to be applied in

relation to the relevant value limit, is as follows –
PART I. Goods

SUBJECT OF VALUE LIMIT METHOD OF

PROCURE- PROCUREMENT
MENT
__________ _______ __________

In relation to – With an estimated procurement The procurement method to

contract value – be applied is –

1. Goods Exceeding $60,000,000.00 open bidding by–

(a) international
competitive
bidding; or

(b) national
competitive
bidding

Exceeding $10,000,000.00 but open bidding by national

not exceeding $60,000,000.00 competitive bidding

Exceeding $5,000,000.00 but restricted bidding with

not exceeding $10,000,000.00 not less than 5 suppliers
invited
 31

Exceeding $1,500,000.00 but restricted bidding with

not exceeding $5,000,000.00 not less than 3 suppliers
invited

Not exceeding $1,500,000.00. single-source

procurement

PART II. Works

2. Works With an estimated procurement The applicable procurement

contract value – method is –

Exceeding $150,000,000.00 open bidding by–

(a) international
competitive
bidding; or

(b) national
competitive
bidding

Exceeding $20,000,000.00 but open bidding by national

not exceeding $150,000,000.00 competitive bidding

Exceeding $10,000,000.00 but restricted bidding with

not exceeding $20,000,000.00 not less than 5 suppliers
invited

Exceeding $2,000,000.00 but restricted bidding with

not exceeding $10,000,000.00 not less than 3 suppliers
invited

Not exceeding $2,000,00.00 single-source

procurement

PART III. Services

3. Services With an estimated procurement The applicable procurement

contract value – method is –

Exceeding $60,000,000.00 open bidding by –

(a) international
competitive
bidding; or

(b) national
competitive
bidding

Exceeding $8,000,000.00 but open bidding by national

not exceeding $60,000,000.00 competitive bidding

Exceeding $3,000,000.00 but restricted bidding with

not exceeding $8,000,000.00 not less than 5 suppliers
invited

Exceeding $1,500,000.00 but restricted bidding with

 32

not exceeding $3,000,000.00 not less than 3 suppliers

invited

Not exceeding $1,500,000.00 single-source

procurement

SECOND SCHEDULE (Regulations 13,

33 and 34)

Procurement Contract Approval Limit

Contract Approval Limit Procurement Contract Value

_______ _________

A procurement contract of –

(a) Tier 1 Limit (a) a value not exceeding $30,000,000;

(b) Tier 2 Limit (b) a value exceeding the Tier 1 Limit but not
exceeding $60,000,000.00;

(c) Tier 3 Limit (c) a value exceeding the Tier 2 Limit.

THIRD SCHEDULE (Regulation 39)

Time-Frames for Prior Notification of Public

Procurement Opportunities

Part I. Goods

Estimated Procurement Method Manner of Minimum Time-

procurement Publication of frame for
contract value Notification Notification Prior
to Submission
of Bids
_______ _________ _______ ___________

1. Exceeding Open bidding by international (a) Electronic 21 days

$60,000,000.00 competitive bidding procurement
system; or

(b) International 30 days

and local news-
papers and
magazines

2. Exceeding Open bidding by national (a) Electronic 14 days

$8,000,000.00 competitive bidding procurement
but not system; or
exceeding
$60,000,000.00 (b) International 21 days
and local news-
papers and
magazines
 33

3. Exceeding Open bidding by national (a) Electronic 7 days

$3,000,000.00 competitive bidding procurement
but not system; or
exceeding
$8,000,000.00 (b) Local news- 14 days
papers and
magazines

Part II. Works

Estimated Procurement Method Manner of Publication Minimum Time-

Procurement of Notification frame for Notification
Contract Value Prior to Submission
of Bids
_______ _________ _______ ___________

1. Exceeding Open bidding by (a) Electronic 83 days

$150,000,000.00 international procurement
competitive bidding system; or

(b) International 90 days

and local
newspapers
and magazines

2. Exceeding Open bidding by (a) Electronic 38 days

$60,000,000.00 international procurement
but not exceeding competitive bidding system; or
$150, 000, 000.00
(b) International 45 days
and local
newspapers
and magazines

3. Exceeding Open bidding by national (a) Electronic 21 days

$8,000,000.00 competitive bidding procurement
but not exceeding system; or
$60,000,000.00
(b) International 28 days
and local
newspapers
and magazines

4. Exceeding Open bidding by national (a) Electronic 7 days

$3,000,000.00 competitive bidding procurement
but not exceeding system; or
$8,000,000.00
(b) Local 14 days
newspapers
and magazines
 34

Part III. Services

Estimated Procurement Manner of Publication Minimum Time-
Procurement Method of Notification frame for Notifica-
Contract Value tion prior to sub-
mission of bids
_______ _____ _______ ___________

1. Exceeding Open bidding by inter- (a) Electronic 38 days

$60,000,000.00 national competitive bidding procurement
system; or

(b) International 45 days

and local
newspapers
and magazines

2. Exceeding Open bidding by national (a) Electronic 21 days

$8,000,000.00 competitive bidding procurement
but not system; or
exceeding
$60,000,000.00 (b) International 28 days
and local
newspapers
and magazines

3. Exceeding Open bidding by national (a) Electronic 7 days

$3,000,000.00 competitive bidding procurement
but not system; or
exceeding
$8,000,000.00 (b) Local 14 days
newspapers
and magazines

Dated this day of , 2018.

Minister of Finance and the Public Service